This week is International Week of Happiness at Work, an international promotion encouraging businesses to focus on making their employees happy. Happiness at work helps staff be more engaged, productive and creative, as well as improving their personal life and relationships. One way a staff member might be happier at work is if they can change the way they work to suit their circumstances, so this blog aims to help you manage flexible working requests to ensure you and your staff can maximise your happiness at work.
Sometimes an employee will want to change the normal way they work, whether that change involves the number of hours worked, the time of day they work, or their place of work. Some reasons for flexible working requests might include needing to look after children or elderly relatives, dealing with a medical condition, or religious reasons. It’s important to know how to manage flexible working requests because it helps to maintain good relationships between you and your staff and helps your business be adaptive, resilient and considerate. Additionally, in some circumstances you could be sued for failing to consider a flexible working request in the proper way.
We’ve set out below the basics of flexible working requests and how to manage them appropriately, to ensure you meet your legal obligations and maintain good staff relationships.
Flexible working requests – the basics
Formal flexible working requests
A formal flexible working request is a request by an employee to change their normal working pattern, usually by modifying their hours or their place of work. They have to be made by a qualifying employee or agency worker and be in writing, dated and include specified information. As an employer, you are under a duty to consider all formal flexible working requests in a reasonable manner.
Staff who are eligible to make formal requests
Only the following employees or apprentices have the right to make a formal request for flexible working:
- those with at least 26 weeks’ continuous service with you; and
- who haven’t made a previous formal flexible working application to you during the last 12 months.
However, employees who have previously made a formal flexible working request, or who are otherwise ineligible to make formal flexible working requests, are still allowed to make informal flexible working requests.
Informal flexible working requests
An informal flexible working request is one that is made orally instead of in writing, or is in writing but doesn’t follow the formal written requirements; or one made by an ineligible staff member. You’re not under a legal duty to consider informal requests, but to maintain good staff relationships it’s best practice to fairly consider an informal request and provide your staff with a suitable response.
How to manage these requests
Below are some tips on how to manage flexible working requests:
1. Have a policy in place
Employers must make sure their staff know how to make a formal flexible working request. You can do this by setting this information out in your flexible working policy. For a template policy, see Flexible working policy. You can also find this policy, and all the other documents you need to manage flexible working requests, as part of the Flexible working toolkit.
There are certain requirements that must be included in a formal flexible working request, including that it must:
- be in writing and dated;
- state that it is a formal request for flexible working;
- say whether the staff member has made a formal flexible working application before (and if so, give the date of that application);
- specify what change(s) your staff member is seeking to their employment terms and conditions and from what date; and
- explain what effect (if any) your employee thinks the change to their terms and conditions will have on your business and how they think that effect could be dealt with. Your staff member doesn’t have to tell you why they are requesting the change, although your flexible working policy may recommend that they do if they are making it as a reasonable adjustment request relating to their disability.
If a flexible working request doesn’t conform to the above requirements, then it is ‘informal’ and you have no legal duty to consider it. However, it’s best practice to tell the employee what is missing and ask them to resubmit their application, to avoid any risks of discrimination.
2. Be aware of how to reply to a flexible working request
You can use our Flexible working toolkit for the full process that you need to follow and all the documents you need to respond to a formal flexible working request.
The ACAS Code of Practice recommends that you manage flexible working requests in the following way:
- Acknowledge receipt of the request in writing, and arrange a meeting in private with your employee.
- After meeting with your employee, objectively consider their request. You can only refuse the request on one or more of eight specific grounds:
- there is an unacceptable burden of additional costs;
- the change would have a detrimental impact on your ability to meet customer demand;
- you can’t reorganise work among your staff;
- you can’t recruit cover;
- the change would have a detrimental impact on work quality;
- the change would have a detrimental impact on performance (of the individual or their team);
- there is insufficient work during the proposed periods of work; or
- your business has planned structural changes.
- Once you’ve made your decision, you must inform your employee in writing as soon as possible. You may decide to:
- accept the request (with or without modification) – see Flexible working – acceptance of request for a template;
- agree to a trial period; or
- reject the request – see Flexible working – rejection of request for a template.
- If you have rejected your employee’s flexible working request, you should have an appeal process so that your employee can discuss your decision with you.
3. Comply with the correct timeframes for responding
Once you receive a formal application for flexible working, you have three months from the date you received it to reach a decision, notify your employee of your decision and conduct any appeals process that you have (unless you both agree to an extension of this period). The Flexible working toolkit will help you take all the necessary steps in good time.
The day the three month period starts depends on how your employee sent you their request (unless you can prove that you actually received it on a later date):
- personal delivery, email or fax: on the day the request was sent (provided you have permitted requests to be sent by email or fax in your flexible working policy and have provided contact details for that purpose); or
- post: on the standard day of delivery for the postal method used (eg next working day for First Class post).
The content in this article is up to date at the date of publishing. The information provided is intended only for information purposes, and is not for the purpose of providing legal advice. Sparqa Legal’s Terms of Use apply.
Marion joined Sparqa Legal as a Senior Legal Editor in 2018. She previously worked as a corporate/commercial lawyer for five years at one of New Zealand’s leading law firms, Kensington Swan (now Dentons Kensington Swan), and as an in-house legal consultant for a UK tech company. Marion regularly writes for Sparqa’s blog, contributing across its commercial, IP and health and safety law content.